Many people see prenuptial agreements (prenups) as a poor way to start a marriage because they seem to anticipate its failure. Prenups are also incorrectly viewed as the exclusive province of the rich and famous. But with roughly half of all marriages ending in divorce, getting married without a prenuptial agreement can be a riskier than actually bringing the subject up with your partner.
A prenuptial agreement is essentially a contract a couple enters prior to marriage that establishes in advance what will occur in case of divorce. It may make provisions for property division, define marital and personal property, maintenance or alimony payments from one spouse to the other, and/or plan out the care and custody of minor children. It need not include all these elements and is highly dependent on the clients’ circumstances.
Prenuptial agreements can be especially useful in marriages where the spouses have unequal economic capabilities. In essence, such agreements limit the risk of loss to the economically advantaged spouse while still providing a guaranteed settlement to the economically disadvantaged spouse. But regardless, a prenuptial agreement can simplify the process of divorce and limit the necessity of what is often contentious and expensive settlement negotiations or litigation.
In fact, a prenuptial agreement can even help foster and preserve a happy marriage. It provides an opportunity for couples to discuss their life goals, how to devote their resources to achieving those goals, establishing priorities, etc., issues requiring early focus but often ignored by the bloom of passion. A good prenuptial agreement can establish or clarify the rights and duties of each spouse during the duration of the marriage. It can help avoid common sources of marital discord-such as financial disagreements or disputes over child rearing-by resolving them before they occur.
To have a post-nuptial agreement, one must be married. Note that Texas is one of some 15 states that recognize common law marriage. Couples who meet the unique Texas criteria may intentionally or unintentionally may already be married in the eyes of Texas law, without a ceremony.
Finally, as many couples are postponing or avoiding marriage and living together, cohabitation agreements can achieve the same results and avoid the grief and expense of the too frequent break-ups.